Federal appeals court upholds Mississippi’s Jim Crow-era voting law ‘steeped in racism’

Faced with an opportunity to ‘right a 130-year-old wrong’, a federal appeals court upholds language drafted to ‘secure permanent white rule’ in the state

A federal appeals court has upheld a 132-year-old, Jim Crow-era election law drafted by Mississippi’s past white supremacist leadership to undermine Black voters, despite the court admitting that the language was “steeped in racism” when it was adopted in 1890.

Following a five-year legal challenge to strip the measure from the state’s constitution, the 5th US Circuit Court of Appeals determined that Mississippi has made enough changes over the following decades to override the racist “taint” of its foundation.

A clause in the state’s 1890 constitution permanently bans people with certain felony convictions from voting, which the document’s authors believed were committed mostly by Black people.

“This provision was a part of the 1890 plan to take the vote away from Black people who had attained it in the wake of the Civil War,” said Rob McDuff, director of the Impact Litigation Project at the Mississippi Center for Justice, which sued the state in 2017 on behalf of two Black men with felony convictions.

“Unfortunately, the Court of Appeals is allowing it to remain in place despite its racist origins,” he said.

The judges did not sign their name to the ruling.

In the Reconstruction-era aftermath of the US Civil War and the abolition of slavery, newly emancipated Black people across the South made political gains despite a period marked by white supremacist militia terror undermining civil rights progress.

Mississippi lawmakers drafted a new state constitution in 1890 instituting an “explicitly white supremacist regime, with its drafters bent on disenfranchising, criminalizing and denying opportunity to the state’s Black residents,” according to the Mississippi Free Press, which first reported the appeals court ruling.

Lawmakers adopted a resolution that states it was their “duty” to “work in such a manner as to secure permanent white rule in all departments of state government and without due violence to the true principles of our republican system of government.”

“White rule” was later revised to “intelligent rule.”

Lawmakers openly touted their white supremacist ambitions while adopting other racist election measures like instituting poll taxes and literacy tests designed to disenfranchise Black voters. Those were later struck down with the Voting Rights Act of 1965.

“There is no use to equivocate or lie about the matter,” then-Mississippi state Rep James K Vardaman explained at the time. “Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the n***** from politics. Not the ‘ignorant and vicious’, as some of the apologists would have you believe, but the n*****.”

Mr Vardaman would later serve as governor of the state and was elected a US senator in 1912.

Following the lawsuit, a lower court determined that the constitution was ratified in the years that followed “without racial motivation” despite a period marked by overwhelming resistance to Black enfranchisement and civil rights progress.

The state maintained segregated public schools until 1969, when the US Supreme Court forced them to integrate, more than a decade after the landmark decision in 1954’s Brown v Board of Education.

In a ruling on 24 August, the appeals court panel’s majority said the plaintiffs failed to show that the law was “motivated by discriminatory intent” or “racism” and determined that “Mississippi has has conclusively shown that any taint associated with [the law] has been cured.”

“Contrary to plaintiffs’ principal assertion … the critical issue here is not the intent behind Mississippi’s 1890 Constitution, but whether the reenactment of [the law] in 1968 was free of intentional racial discrimination,” according to the ruling.

A dissent from Judge James Graves – a Black Mississippi native – disputed the court’s majority.

“In 1890, Mississippi held a constitutional convention with the express aim of enshrining white supremacy,” which the court voted to uphold despite the fact that it was “expressly aimed at preventing Black Mississippians from voting,” he wrote.

“And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, ‘cleaned’ that provision in 1968,” he said. “Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.”

Though Mississippi is “home to the highest percentage of Black Americans of any state in the Union,” it has “unsurprisingly” not elected a Black person to statewide office since 1890, Judge Graves noted.

His dissent also traces his own experience with white supremacist violence, including a burning cross on his grandmother’s lawn in 1963.

Judge Graves also noted that the state continues to recognise Confederate Heritage Month every April and Robert E Lee Day every third Monday in January – the same day the nation recognises Dr Martin Luther King Jr Day.

The state’s flag prominently featured a Confederate flag from its adoption in 1894, 30 years after the Civil War, until 2020, when lawmakers approved a new one.

“Even after this monumental step, in which Mississippi was forced to reckon with its past, more than vestiges of that past remain,” Judge Graves wrote.